Council Debates And Defeats Motion Regarding Outside Legal Counsel
It was suppose to be short and to the point but in the end it was the potential huge costs involved which saw a motion regarding the use of outside legal counsel defeated.
Introduced by Councillor Dawn Luhning during the Notice of Motion portion in this past Monday evening’s Council meeting the question of what the City should do regarding not presently employing a City Solicitor was debated.
In the end, after at times a heated debate, Council decided to leave the issue alone.
Councillor Luhning brought forth a Notice of Motion to have all agreements and legal files handed over to a third party lawyer as the City at the present time has no in-house solicitor with the retirement of Myron Gulka-Teichko and the resignation of assistant city solicitor Katelyn Soltys.
Soltys’ last major file she handled for the City was the attempt to legally collect close to $1 million in outstanding parking fines before becoming the in-house solicitor for the Saskatchewan Association of Health Organizations (SAHO).
Two resignations, former City Clerk/Solicitor Myron Gulka-Teichko (picture above) and Katelyn Soltys, former City Solicitor/Director of Legislative and Enforcement Services, has left the City without in-house legal counsil - MJ Independent file photo
In her motion Councillor Luhning sought to have “effective immediately all out standing, current and future legal files and agreements be sent to outside legal counsel for review and opinion. These are to include all legal agreements since the departure of the City Solicitor and up until such time as a City Solicitor is hired.”
In order for the motion to be debated Council had to handle the issue in two parts - first where the motion must be seconded and pass by two-thirds of the vote to waive the need for notice and the motion itself to be debated on.
If the motion to waive the need to give notice were to fail the motion would have to wait until the next meeting to be voted on.
Council voted 6 - 1 with Councillor Kim Robinson opposed to waiving the notice such a motion is required to have.
REASONS FOR THE MOTION
Speaking in favour of her motion Councillor Luhning said she did not it needed “a lot of discussion.”
“We currently are in a position where we do not have a City Solicitor in that spot. And City Council is receiving agreements and there are outstanding files, files opened that I believe we should have a legal eye on before anything comes to us, before anything is approved,” she said.
QUESTIONS ASKED
Councillor Crystal Froese said she had voted in favour of waiving notices as she believed there were a couple of questions which needed to be asked.
“Where are we in our hunt for a solicitor or another solicitor,” Council Froese asked, adding “as well as what is your process for agreements already in place?”
City manage Jim Puffalt said the City had hired “a head hunting firm to go across Canada to find the next City Solicitor and Assistant City Solicitor.”
Puffalt said the City is presently using outside legal counsel for agreements where there are no existing templates the City had developed by the City Clerk/Solicitor’s office in the past.
“What we are doing right now is directing contracts that go outside our normal. Which normally go to third parties which you mentioned…right now we are directing agreements to the appropriate third party,” he said.
“If there is something that is new and outside our templates those are the ones we would be forwarding to third parties (outside legal counsel)”
Councillor Doug Blanc asked if there was any in-house legal counsel and once finding out there was none said “I am certainly in favour of that (Luhnings’ motion).”
MAYOR SAYS HIRE LOCAL LAWYERS
Mayor Clive Tolley attempted to propose an amendment to Councillor Luhning’s motion that wherever possible the City hire local legal counsel to handle City business.
Councillor Luhning then called a point of order on Mayor Tolley’s attempt to hire local pointing out a seconder of the motion was required and the Mayor’s amendment was perhaps a separate motion.
City Clerk Tracy Wittke was asked if the Mayor’s proposed amendment was a separate motion and she agreed with Councillor Luhning’s assessment it was not an amendment but in reality a separate motion.
The Mayor withdrew his amendment request.
“I will not do that. I will speak to Administration about employing local lawyers should this pass,” he said.
COUNCILLOR ROBINSON DISAGREES
“It seems to me based upon what Administration has said we are considering a motion to do something…that Administration is already doing,” Councillor Robinson said, adding “it sounds to me Administration is only looking at agreements that go outside the (legal) templates to outside counsel.”
Puffalt said Councillor Robinson was correct in his assessment of the situation.
He went on to say Moose Jaw has a “huge advantage” by being one of only three communities in Saskatchewan who employ in-house legal counsel.
“Our city solicitor spent a lot of time putting the templates together we use, particularly our purchasing policy, and if somebody steps outside of that that is where we go (send the matter to outside legal counsel)” Puffalt said.
“It sounds to me we are making a motion to do something that has already been considered. The expertise we have in Administration are doing their due diligence so with that being said I won’t support this motion,” Councillor Robinson said.
COUNCILLOR EBY ASKS ABOUT TEMPLATES
Councillor Heather Eby asked if the City did have in-house legal counsel would Administration send contracts to legal in-house counsel or would they rely solely on the legal templates. Puffalt said that if the City had in-house counsel all agreements go there and the templates are not relied upon.
“Mr Puffalt is the city manager. He does a great job as city manager. He is not a city solicitor nor is he assistant city solicitor nor is he internal legal counsel therefore we need to be sure on paper, in our minutes, in our procedures we have instructed we want all agreements reviewed by legal counsel,” Councillor Eby said.
“Because we are on the hook, these people are on the hook, if one of those templates happens to come through on a day or whatever happens. ”
Councillor Eby felt it was appropriate to give Administration direction on how to proceed with the issue.
“We are now giving them the direction and permission to please use external counsel for all legal agreements so we have all of our Is dotted and Ts are crossed,” she said.
Councillor Froese rose to say given what had been said she supported Councillor Luhning’s motion.
BIG BUCKS CHANGE DEBATE
Mayor Tolley asked about the cost to send all agreements to outside legal counsel for advise.
“Is it going to be a significant cost in what we pay an in-house city solicitor and what we have to pay to external lawyers and what is the budget implications,”: Mayor Tolley asked.
“I believe that we have kept the budget generally the same because generally that go outside we are talking $500 to $600 per hour…so I think the budget is not going to be much dropped because we are short staffed right now,” Puffalt replied.
Finance Director Brian Acker said the wording of the motion would mean higher costs for the City.
“I certainly don’t want to enter the debate but I think the motion is referring all agreements and contracts which tight now would not be the case,” Acker said.
“If it is referring all of them there is certainly an increased cost with that above and beyond what we are experiencing now. As the City Manager says we have budget the same (amount) in our 2022 (budget) so that area will cover sort of the practice we are doing now.”
Acker said as worded, sending all agreements out to third party legal counsel, would certainly add additional costs to the 2022 Operating Budget.
“...if it is referring all of them there is certainly an increased cost with that.”
COUNCILLOR LUHNING AND MASSIVE PILE OF DOCUMENTS
Councillor Luhning pointed out in the time she served as Acting Mayor, following the resignation of the previous mayor and the byelection win by Mayor Tolley she had seen a massive stack of legal documents come across her desk.
Having all agreements vetted by outside legal counsel could save the City much more than spent now if legally the City had not covered all of its legal bases.
“I am not an expert at everything…I think it is only prudent of us to hire the expertise to (vet these agreements),” Councillor Luhning said.
“I cannot work on assumption. My job is to ensure our bases are covered…I can’t assume things are being covered by legal when all know is that we do not have a City Solicitor,” she said.
Having a legal opinion was a necessity to save the City future pain, Luhning said.
“It might be a lot less if we have any problems,” she said, adding “I have to ensure as an elected official the business of this City is being vetted by legal counsel.”
COSTS AND DUPLICATION
“If there is a stack this high,” Councillor Robinson said, while illustrating about two feet of documents on a desk, “certainly many of those are frivolous agreements that are being handled. If we have to send everything out it is going to be a lot more expense. That is why I won’t support this because as Councillor Froese said, even if we have the budget does not mean we have to spend it.”
Mayor Tolley said he understood Councillor Luhning’s intent “and we need to be sure having signed a contract it has been properly vetted by a lawyer. But many of these are standard agreements that we have been using…I would like to see the City Manager’s discretion (on this).”
Councillor Froese said she did not think the motion would be such a potential large amount of legal work and withdrew her support for Councillor Luhning’s motion.
“At $500 per hour that can get very expensive when the stack is that high,” she said making a gesture indicating the large amount of legal documents the motion would encompass.
Councillor Blanc asked it the templates being used now were vetted by legal counsel.
“Three years ago we would have been terrified by this because we did not have templates. We have templates now,” Puffalt replied.
“I agree with Councillor Luhning we want to protect the City, Administration and certainly Council…but I really don’t want to spend a lot of money on lawyers for regular templated that are just a day to day occurrence,” Councillor Blanc said.
THE VOTE
In a 4 - 3 vote with Mayor Tolley and Councillors Froese, Blanc and Robinson opposed, the motion was defeated.
Administration will continue to utilized legal templates for agreements only using outside third party legal counsel when the agreements fall outside of the legal templates the City is presently using.